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Sunday, November 13, 2011

Editorials: Weak state bar has failed in watchdog role over prosecutor misconduct

A staff editorial in the Austin Statesman argues that the state bar "must act forcefully in the pursuit of justice" by sanctioning District Judge Ken Anderson and Williamson County DA John Bradley over their roles in withholding exculpatory evidence in the Michael Morton exoneration. A key passage says that:

Any miscarriage of justice is tragic, but there is a level of relief in cases of wrongful convictions that were caused by unintentional errors or mistakes.

The public can take a breath and feel the system corrected itself, however late and unfortunate.

As taxpayers, we financially compensate innocent people who suffer prison terms because mistakes were made. In some instances, district attorneys who prosecuted and judges who sentenced or oversaw those trials are rightly humbled and offer apologies.

But Morton's case denies us that comfort. We're learning that mistakes or unintentional errors were not the cause of an unjust outcome. Instead, we're seeing through court records the actions of an arrogant legal team that bent, broke or entirely discarded ethical rules to convict Morton.

Allegations regarding misconduct focus on Anderson and his trial assistant at the time, Mike Davis. But they also should encompass actions of the current Williamson County district attorney, John Bradley. For six years, Bradley waged a legal battle to prevent the very DNA testing of evidence that freed Morton and pointed to another culprit. Last week, Mark Alan Norwood, 57, was arrested in his Bastrop home and charged with the 1986 murder of Christine Morton. ...

Certainly, there are many district attorneys who abide by the rules and take seriously their duties to seek justice, even when it means losing a case. But there are those who have abused their authority, and they have become emboldened by a weak State Bar that has not acted forcefully enough to address misconduct in the legal profession.

The Texas legal system certainly needs the State Bar watchdog to bark. But a watchdog that is unwilling to bite cannot effectively protect the house.

The Dallas News ran an editorial yesterday (behind paywall) looking beyond the impotent state bar to suggest other routes for preventing or punishing prosecutor misconduct, starting with mandating an "open file" policy for prosecutors:

Many other states operate that way: cards on the table, forget the cat-and-mouse game. Texas’ embarrassment of exonerations should be a strong motivation to fall in line.

Improved training is another step the state should take. There now is no mandatory course or refresher that the state requires of prosecutors to ensure that everyone is clear on obligations to share evidence. Considering the authority that prosecutors wield, there is compelling public interest in making sure they understand their roles in ensuring constitutional rights.

Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.

The News closed with summaries of four high-profile cases involving prosecutor misconduct:

Dale Lincoln Duke, 60, was released in Dallas County on Nov. 4 after 14 years in prison, his conviction on child abuse charges declared “unjust” by a judge. The DA’s office said a prosecutor withheld evidence that the child’s grandmother thought the girl was lying.

ChelseaRichardson, 27, won an appeal Nov. 1 that got her off death row and will mean life in prison. She was convicted of masterminding the murder of her boyfriend’s parents in Mansfield, but notes withheld from the defense show a different defendant may have played the key role.

Michael Morton, 57, was freed in Williamson County on Oct. 4 after nearly 25 years in prison for the murder of his wife. DNA tests implicated another man, who was arrested last week. Defense lawyers charge that the DA withheld information that Morton’s son saw a “monster” do the killing. Now a judge, the district attorney is under investigation by the State Bar of Texas.

Anthony Graves collected $1.4 million in compensation July 1 for a bogus conviction in the murder of six people and 18 years in prison, including death row. Graves, 45, was freed in October 2010. Prosecutors proclaimed him innocent and said the former Burleson County DA manipulated witnesses to gain a conviction.

19 comments:

Anonymous
said...

"Allegations regarding misconduct..........also should encompass actions of the current Williamson County district attorney, John Bradley. For six years, Bradley waged a legal battle to prevent the very DNA testing of evidence that freed Morton and pointed to another culprit. "

Just what actions should be sanctionable. You can think Bradley is the devil incarnate but just what about waging a "legal battle" equates to misconduct? Sounds like it's a "your a mean guy and an a-hole and we don't like you" type argument. The remedy for that should be at the ballot box.

9:22, what part of "right and wrong" do you not understand? Willful concealment of exculpatory evidence should be punishable as a felony, and although the ballot box should be used, disbarment should accompany it.

GFB wrote: "In some instances, district attorneys who prosecuted and judges who sentenced or oversaw those trials are rightly humbled and offer apologies."

I'm an avid news reader and have never heard a Texas prosecutor express regret or issue an apology for sending an innocent person to prison.

Perhaps you can provide the names of these prosecutors and maybe post some links backing your assertion?

For the most part prosecutors are sociopaths and lack the ability to have empathy. And for them to apologize would be an admittance that they have made a mistake, and sociopaths would never admit to such.

What part of "fighting a legal battle" do you not understand? It's not a simple matter of what you FEEL is right or wrong. There are legal standards to be followed. Nothing in that opinion piece identified what actions by Bradley should be sanctionable. Arguing motions in court on a legal position that evidence should not be retested is different than willfully concealing evidence--which the Statesman does not accuse Bradley of doing. It is extremely sloppy (and irresponsible) for a paper to argue someone should be sanctioned and not identify the reason--a valid legal reason.

9:41, those were the words of Austin Statesman editorial writers, not my own. I merely pass them along for your consideration.

9:22, I think it's arguable Bradley was complicit in withholding exculpatory evidence by fighting its release for so many years. And Anderson may have engaged in conduct bringing discredit on the judiciary that may get the Judicial Conduct Commission involved. There are a number of theories floating about that might get those two roped in under the statute of limitations, particularly in light of their meetings to go over all the evidence prior to the recent depositions.

Also, JB may well get his comeuppance at the ballot box; we'll soon find out.

A prosecutor's duty is to see that justice be done--not to win or fight to prevent the truth from coming out. Too many DA's today are micro-managed and their job security is judged by the amount of convictions they achieve and dismissals they file. The DA has a duty to represent the public and to enforce the laws--but he/she has a tremendous amount of discretion--and that's where the power lies. Not to be an apologist for Bradley but he had a current District Judge involved in this debacle. If he didn't go to great lengths to protect this judge, I'm sure Bradley's office would be treated differently by this judge. Remember that it wasn't until Judge Harle from Bexar county took over the case did the DA's office do a complete 180 on how they proceeded on the case. I do wish Bradley's office would've "let justice be done though the heaven's fall" but that's not easy in a small town.

Its great to hear people start talking about this issue. Its been a long time coming.

A couple of things: First, while an open file policy is a great idea, that alone won't solve the problem. Smith County allegedly has an "open file" policy but they still manage to hide evidence. Just look at the recent Mineola Swingers case. The tapes of the prior interviews of the children were never found. So, if evidence is hidden or destroyed, what good is an open file policy?

Second, proseuctorial misconduct is much more than just withholding evidence. To use Smith County and the Mineola casea again, the DA's office hid a witness so that the defense could not call him to testify. A frequent form of misconduct used in the past by Smith County and was also used in the Graves case is the practice of making undisclosed deals with jailhouse snitches. Knowingly encouraging or allowing witnesses to lie is another form of mischonduct that occurs too frequently.

So, while an open file policy is a good idea, there must be consueqences for proscutors who engage in intentional miscondut. One of the articles mentioned the bill to remove absolute proseuctorial immunity. I think this would be the best way to hold prosecutors acountable. I'm afraid just depending on the state bar won't work. There's too much political cronyism involved there. The incoming president of hte state bar is best buds with the Smith County DAs office. In fact, he testified for Skeen, the former sleazy long time Smith County DA and current district judge, in a recusal hearing in the Mineola case. He committed blatant perjury by testifying that Skeen was not biased in favor of the prosecution when one would have to be deaf, blind and stupid to believe that. The appeals court had already chastised Skeen for making up rules to help the prosecution win in that case. So, don't expect much from the state bar on this issue.

That brings me to the next issue: The State Commission on Judicial Conduct is just as impotent as the state bar. Skeen has been reported to them multiple times but has not been disciplined. He consistently breaks the rules to help the proseuction. He has a practice of setting unconstitionally excessive bonds when the DAs office requests it. He is blatantly biased and has openly broken the rules repeatedly to help the prosecution. Yet, no action from the Commission. This could be because he managed to ge this political crony, Smith County Judge Joel Baker appointed to the Commission. The Commission is in need of reform. Under the state constition its files are kept secret unless they vote to publicly sanction a judge. Therefore, there is no way for the public to find out why a judge who was investigated was not disciplined. This means that it is very possible a judge can escape discipline simply because he has a buddy on the commission adn the public would never know. This needs to be changed.

Complaints were made against Skeen and prosecutors in the Mineola case. The Tyler paper is essentially the propaganda arm of the DA's office so they won't do it, but someone needs to call for these investigations to e reopened.

I think that Bradley getting everybody together to get their stories straight before their depositions is actionable witness tampering.

There is also evidence that he was aware of the exculpatory information in the hidden file well before he finally, reluctantly turned it over to the defense, which is a potential Brady violation in and of itself.

As far as an open file policy, a prosecutor who is willing to hide evidence to win is willing to hide evidence to win even if there's an open file rule or law. Look at Mike Nifong who entered into a conspiracy to withhold exculpatory DNA results. Even during his own disbarment hearing, he maintained that, despite North Carolina having an open records law, he wasn't required to turn over such reports until he was ready to do so.

It is real interesting to note that if this happened within the medical profession the practicioner's license would be obliterated by the medical review board, a medical malpractice suit would be instituted and possibly criminal charges (and if anyone doubts this look at Dr. Murray).

If this happened in the accounting profession the accountant would be thrown out of their highrise, into the street and then into prison by IRS auditors.

If misconduct happened within the educational system, the school teacher would be fired, sent to prison and possibly be registered as a sex offender.

If misconduct happened within the clergy, the minister would be tossed under the bus or in prison by CPS and the congregation would be burned too.

If misconduct occured in the roadways by a trucker that fell assleep at the wheel of an 18 wheeler, Jim Adler would would tough Texas hammer the sop into the pavement.

If prosecutors commit misconduct, in is incidently shrugged off as a disposable casualty and money is taken from the taxpayers almost as a bribe. The money left over is used to buy a really big broom and an even bigger rug for the lawyer....

Law school sounds fun. I just need to go get me a law degree, some cowboy boots, cowboy hat, colt six shooter and maybe a lasso and then I can tell the voters that I am Texas Tough Cowboy Rope'em and Shoot'em on crime.

I know some who wink and nod and let the investigating agency know it's OK to "lose" or hide items, documents, evidence, etc., favorable to the accused, and then say with a straight face: We don't have it in our file, Your Honor.

We have enough criminal sanctions in the penal code for the kind of behavior you are talking about...but WHO IS TO PROSECUTE?

Old Cop makes a good point. If there was an open file law it should include the police. It should require that the police file be open to the defense and specify that anything in the posession of the police, regardless of where or how it is stored, is considered to be part of the file.

"Just what actions should be sanctionable. You can think Bradley is the devil incarnate but just what about waging a "legal battle" equates to misconduct? Sounds like it's a "your a mean guy and an a-hole and we don't like you" type argument. The remedy for that should be at the ballot box."

the big problem here is the U.S. SUPREME COURT! as long as when presented with clear CRIMINAL ACTS by prosecutors and others in govt...and they simply state....soveright immunity...so TOUGH SHIT! it's done!

We should amend the "you lose, you pay", law and if a person is wrongfully convicted then it should be 60% of the cost put on the district attorney, 30% put on defendants attorney, and 10% to be paid by the arresting agency.

Here's an idea: How about a statute that would require a civil penalty when it is found by a court that a prosecutor or law enforcement officer engaged in intentional misonduct. The penalty would not be to the individual but to the agency that employs that individual. I'm thinking a hefty penalty...say minimum $1000 up to possible $10,000 depending on the seriousness of the misconduct. And where the misconduct results in a wrongful conviction the penalty would increase to minimum of $100,000 up to a maximum of $1 million. Then, the statute should require this money to be used to supplement the budget in that jurisdiction for indigent defense.

I've been an observer of Williamson county politics for almost 50 years. My dad was the last Democrat to be county commissioner for Georgetown. I can tell that the two cases in the media are just two of many--I can point out several more if anyone is interested. As hard fought as the Morton victory was, there's a lot more to do. Both Judge Anderson and DA Bradley know it, too. They are hoping the public and the Innocence Project will suppose the war is won when there's just be progress in one battle. Robert Rister

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